10 Cir: CO child abuse isn’t child abuse offense

The U.S. Court of Appeals for the Tenth Circuit held that a conviction for child abuse in Colorado categorically wasn’t a “child abuse” type of offenseaggravated felony. Ibarra v. Holder, No. 11-9539, slip op. (10th Cir. July 1, 2013) (Murphy, Seymour, and Holmes, J.). Judge Seymour wrote the panel’s decision.

This case involved a woman who, despite having been brought to the United States as a four-year-old in 1985, remains unauthorized. She was convicted of “child abuse—negligence—no injury,” a Colorado misdemeanor carrying a minimum sentence of $50, Colo. Rev. Stat. § 18-6-401(1)(a), (7)(b)(II); 18-1.3-501, after having left her children home with her mother while she went to work only to have her mother leave the children alone. Ibarra, No. 11-9539, slip op. at 3 & n.3. She was subsequently placed in removal proceedings where she conceded removability and sought cancellation of removal for non-LPRs. Though the immigration judge expressed sympathy, he concluded that Ibarra was ineligible for cancellation because her conviction categorically constituted a child abuse offense. Ibarra, No. 11-9539, slip op. at 4; see INA § 237(a)(2)(E)(i) (defining a “crime of child abuse”). The BIA agreed.

On appeal to the Tenth Circuit, Ibarra argued that the BIA’s interpretation of child abuse is overbroad. The court agreed.

The BIA’s current definition of “child abuse, neglect, or abandonment” includes “offenses of child endangerment that do no result in ‘actual harm or injury’.” Ibarra, No. 11-9539, slip op. at 11 (discussing Matter of Soram, 25 I&N Dec. 378 (2010)). It also includes offenses committed intentionally, knowingly, recklessly, negligently or through omission. Ibarra, No. 11-9539, slip op. at 10 (discussing Matter of Velasquez-Herrera, 24 I&N Dec. 503 (2008)).

Though courts usually defer to agency interpretations of statutory provisions within their area of expertise, they do not do so when the agency’s interpretation “contravenes Congressional intent.” Chevron, U.S.A. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984). That’s exactly what occurred here.

To begin with, Congress clearly sought to target only individuals found to have committed the crime of child abuse. Ibarra, No. 11-9539, slip op. at 14. Many states, the court explained, define “child abuse” and “child neglect” under a variety of civil law provisions (e.g., family welfare law). Not only is the purpose of criminal law different from the purpose of civil statutes, but they tend to define “child abuse” or “child neglect” differently. Ibarra, No. 11-9539, slip op. at 15. The crime usually involves a higher mens rea that does the civil violation. Ibarra, No. 11-9539, slip op. at 15. In two decisions in which it defined “child abuse” and “child neglect,” the court determined, the BIA erred in relying on several civil law definitions of these terms in coming up with its definition of what constitutes the crime of child abuse for aggravated felony purposes. Ibarra, No. 11-9539, slip op. at 16 (discussing Matter of Soram, 25 I&N Dec. 378 (2010), and Matter of Velasquez-Herrera, 24 I&N Dec. 503 (2008)).

In addition, the court concluded that the BIA’s definition is so broad it includes a mental state, criminal negligence, punished as crimes in only a handful of states. This, the court explained, is problematic because courts must “look[] to ‘the criminal courts of most States’” when searching for the “‘generally accepted contemporary meaning’” of a statutory phrase that Congress didn’t define. Ibarra, No. 11-9539, slip op. at 20 (quoting Taylor v. United States, 495 U.S. 575, 596 (1990)).

After surveying the child abuse laws of all fifty states and the District of Columbia in 1996 (when Congress enacted the “child abuse” category of removable offenseaggravated felony), the court concluded that “at least thirty-three, did not criminalize endangering children or exposing them to a risk of harm absent injury if there was only a culpable mental state of criminal negligence.” Ibarra, No. 11-9539, slip op. at 24. As such, a definition of “child abuse” that includes criminally negligent conduct when no injury occurs, as the BIA’s definition does, “cannot serve as the generic federal definition” used for immigration law purposes. Ibarra, No. 11-9539, slip op. at 23-24.

The court accordingly reversed the BIA’s conclusion that Ibarra was ineligible for cancellation of removal for non-LPRs. Though the court did not say as much, this case casts doubt on the continued vitality of Matter of Soram and Matter of Velasquez-Herrera in the Tenth Circuit.

Correction: This post originally referred to the child abuse offense as a type of aggravated felony. It is not. It is a stand-alone removable offense under INA § 237(a)(2)(E)(i). Many thanks to blog reader Andrea Saenz for bringing this error to my attention.